SunFrog Shirts, LLC ("SunFrog") is fulfillment services platform for artists to submit and sell their designs on t-shirts, sweatshirts, hoodie sweatshirts, and other apparel and products at www.sunfrog.com. SunFrog permits individual users to sign up for an artist account and upload original artwork to be displayed and offered for sale, printed on apparel, sold, and distributed. These terms and conditions (the "Artist Agreement") govern the respective rights and obligations of SunFrog and the artist, as well as accepted use of the SunFrog platform by the artist.
1.1 "Artist", "You" or "Your" refer to the individual user who signs up for an artist account at www.sunfrog.com with the intent of uploading artwork for display, print, offer of sale, sale, and distribution via the SunFrog site.
1.2 "Design" and "Your Design" refer to the original artwork, including illustrations, graphics, vector files, renderings, and other text or images in hard copy or digital format provided by the Artist for display on the Site or on physical or electronic products made by or for SunFrog.
1.3 "My Manager" refers to the section of www.sunfrog.com that an Artist may access with a unique username and password combination for the purposes of managing an artist account where the Artist may provide and edit profile information and payment preferences, upload and edit the Design and mockup, track Product views and sales, and view Royalty and Payout history.
1.4 "Payout" refers to an aggregate of Royalties paid to an Artist.
1.5 "Product" refers to any physical or electronic products, including but not limited to apparel, stickers, and promotional materials.
1.6 "Purchase price" means the price paid by the customer, retailer, wholesaler, or merchant partner, adjusted by any promotional discounts or coupons, and shall not include shipping charges.
1.7 "Royalty" and "Royalties" refer to the percentage of an individual sale amount charged to the customer, or retailer, wholesaler, or merchant partner, not including shipping costs, that SunFrog agrees to pay as a licensing fee for the Design.
1.8 "SunFrog site" refers to any web sites or web sites owned or operated by or for SunFrog.
2.1 To sign up as an Artist for SunFrog YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE, and supply a valid tax ID, which may be your Social Security number for individuals, or a federal tax ID for corporations or other business entities. If You are not a U.S. citizen or a representative of a U.S. business entity, You may be required to provide additional personal or business information for tax reporting purposes.
2.2 As part of the registration process, You will select a username (email) and password combination that You use to access Your Account via My Manager. YOU ARE ONLY PERMITTED TO REGISTER ONE ARTIST ACCOUNT. YOU MAY NOT USE OUR MARK, "SUNFROG SHIRTS," OR ANY PART OF THE SunFrog MARK, OR ANY COMBINATION OF WORDS, LETTERS, SYMBOLS, NUMBERS, OR SPECIAL CHARACTERS IN YOUR USERNAME THAT MIGHT INDICATE YOU ARE AN EMPLOYEE, TEAM MEMBER, PARTNER, AGENT, OR DESIGNEE OF SunFrog, OR MIGHT OTHERWISE CAUSE CONFUSION ABOUT YOUR RELATIONSHIP WITH SunFrog. You are responsible for maintaining the confidentiality of Your username and password, and You are responsible for all usage and activity on Your Account, including use of the account by a third party authorized by You to use Your Account. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Your Account by SunFrog and referral to the appropriate law enforcement agencies.
3. PROPRIETARY RIGHTS & INTELLECTUAL PROPERTY LICENSE.
3.1 You acknowledge and agree that any content, including but not limited to text, data, photos, graphics, etc., or other material contained or distributed on or through the SunFrog site, by SunFrog, its advertisers, affiliates, or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any content received through the SunFrog site without the authorization of SunFrog or the content owner. You may not publish, reproduce, copy in whole or in part, nor upload, download, post, email, sell, or otherwise distribute content available through the SunFrog site in violation of applicable copyright and other intellectual property laws.
3.2 You retain all ownership rights to the Design submitted to the SunFrog site. By uploading the Design to the Site, You hereby grant to SunFrog the nonexclusive, universal, transferable, sublicensable right to use, reproduce, publicly display, sell, and distribute the Design in or on Products available at the SunFrog site for direct purchase, or available through other retailers, wholesalers, distributors, merchant partners, or businesses working with SunFrog at pricing determined by SunFrog in its sole discretion.
3.3 By uploading the Design to the Site, You further grant to SunFrog a nonexclusive, universal, transferable, sublicensable right to use, reproduce, publicly display, sell, and distribute the Design in or on products in advertising, marketing, samples, and promotional materials for the purpose of promoting the SunFrog site and Products. Without limitation, this promotion, marketing, or advertising may consist of: display of Products bearing the Design; Product or content placement bearing the Design in magazines, television shows, movies, and other media; the sale of Products bearing the Design available on the SunFrog site through third party product feeds, whether at retail prices, discounted prices, promotional prices, or as otherwise determined by SunFrog in its sole discretion; and the sale of Products bearing the Design available on the SunFrog site to other retailers, wholesalers, and distributors or businesses at pricing as determined by SunFrog in its sole discretion.
3.4 You further grant SunFrog the right to make modifications to the Design as necessary to prepare the Design for production of any Product or for other manufacturing purposes.
3.5 You acknowledges and agree that the SunFrog site and any software provided to You or used in connection with the SunFrog site, including, for example and without limitation, any APIs or other scripts containing proprietary and confidential information is protected by applicable intellectual property and other laws.
3.6 SunFrog grants You a non-exclusive, revocable, and limited license to use the content and SunFrog's tools, images, and Product mockups for the purposes of promoting the SunFrog site on the condition that You provide appropriate attribution and a link to the SunFrog site. SunFrog reserves the right to terminate this license at any time.
3.7 The intellectual property rights in or relating to the content of any notes, messages, emails, postings, letters, ideas, suggestions, concepts, or other written materials which You submit or communicate to SunFrog (excluding the Design submitted by You) will automatically be deemed to be assigned, granted, and transferred by You to SunFrog upon their submission or communication to SunFrog, and You do assign all rights therein to SunFrog and agree that the same will automatically become the property of SunFrog, and that SunFrog may use, exploit, copy, publish, implement, transfer, and in all other ways deal with such materials and all of the intellectual property rights therein in any way and for any purpose SunFrog may elect, in perpetuity.
3.8 You acknowledge that SunFrog does not pre-screen Designs before they are made available for sale on the SunFrog site, but that SunFrog may, at any time, review the Design contemplated under this Agreement, and the content it contains for adherence to our guidelines and compliance with the terms and conditions set forth in this Agreement, and shall have the right, but not the obligation, in its sole discretion to remove any Design that is available on the SunFrog site.
4. MATURE CONTENT. SunFrog in its sole discretion reserves the right to reject or remove a Design that incorporates mature content, including but not limited to Designs that contain vulgar or crude language; contain lewd or lascivious depictions or descriptions of sex acts; contain depictions or descriptions of male or female genitalia; promote hatred, racism, homophobia, xenophobia, bullying, or scorn of individuals or groups; and/or promote violence, self-harm, self-mutilation, or suicide.
5.1 SunFrog agrees to pay You a Royalty for each unit of Product sold bearing Your Design on the Site.
5.2 SunFrog may not pay You Royalties for sales of any Products which incorporate a Design that violates this Agreement or constitutes a breach of Your warranties or representations.
5.3 If You are registered with SunFrog as both an Artist and a Merchant under the SunFrog Merchant Partners Program, SunFrog will not pay You a Royalty for the sale of any Products bearing Your Design that originate from Your Merchant site.
5.4 Royalties earned post to Your Account on a rolling basis and may fluctuate with credits and debits in circumstances of a product return; a duplicate entry or other clear error; a non-bona fide transaction where there is no Artist failure to comply with this Agreement; or, with respect to a sale, non-receipt of payment from, or refund of payment to, the customer, or retailer, wholesaler, or merchant partner, (a "Chargeback"). SunFrog may apply at any time Chargebacks for non-bona fide transactions in the circumstance of Your failure to comply with this Agreement.
5.5 Payouts are calculated on the first business day of each month for the previous month's sales. However, if Your total Payout for any month are less than US$50.00, SunFrog reserves the right to hold the Royalties until the total Payout due meets or exceeds US$50.00. If Your Payout due meets or exceeds US$50.00, payment will issue according to the payment preference You indicate in Your Account in My Manager.
5.6 Payouts may be delayed or withheld entirely if You fail to provide full and accurate payment information and tax documentation, where required.
5.7 You are responsible for accurately reporting all Royalties earned and Payouts received to the appropriate government entities, and shall be further responsible for any and all taxes and penalties to foreign, federal, state, municipal, etc. governments.
6. ATTRIBUTION, PRODUCT DESCRIPTIONS, & KEYWORDS.
6.1 You shall select and maintain an Artist Name to be used for attribution on the SunFrog site.
6.2 Attribution under Your Artist Name shall be included on each individual Product page on the SunFrog site beneath the Product mockup bearing the Design in connection with the words "Art Submitted By", "Artist", or other similar language indicating You as the creator of the artwork.
6.3 You may create and edit a title, description, and keyword search terms for the Design in My Manager when uploading the necessary files and/or after the Design is live on the SunFrog site. The product description and keywords must accurately reflect the content and representations of the Design and be logically connected to the Design.
6.4 You are prohibited from creating a Product title, description, and keyword search terms that are false or misleading as to Product availability, cost, promotions, discounts, savings, or charitable partnerships and planned donations; that contain any words, images, or links that infringe on the rights of third parties, including without limitation intellectual property rights; that contain any warranty language, including express or implied warranties of merchantability and fitness for a particular purpose; that contain any guarantees as to delivery, availability, product origin, product brand, customer service, customer satisfaction; or that contain any such other promises that would establish an obligation between SunFrog and an end-user of the SunFrog site.
6.5 Product titles, descriptions, and keywords may be subject to review and revision by SunFrog without notice.
7. TERM & TERMINATION.
7.1 This Agreement shall be in effect on and from the date on which You upload the Design for display and/or sale via My Manager.
7.2 In the event a Design is to be offered only for a limited, designated time period, You shall communicate to SunFrog the duration of availability of the Design using a designated method available in My Manager.
7.3 SunFrog reserves the right in its sole discretion to terminate this Agreement at any time by removing the Design from display and sale on the SunFrog site, by terminating Your password to the My Manager terminal, by terminating Your account or any part thereof, or by terminating Your access to the SunFrog site, with or without notice.
7.4 SunFrog may also in its sole discretion and at any time discontinue providing the SunFrog site, or any part thereof, with or without notice.
7.5 Where a Design is not made for sale for a limited, designated time period, You reserve the right to terminate this Agreement as to the Design upon giving thirty (30) days' notice to SunFrog via email to email@example.com.
7.6 You acknowledge that SunFrog may ultimately remove the Design for sale or display on the SunFrog site, or may exclude the Design from advertising, marketing, or promotions for any reason, at any time, in its sole discretion.
7.7 All rights herein as to the Design shall terminate upon cancellation of this Agreement, or in the event SunFrog declines to display or sell the Design, or removes the Design from the SunFrog site, except that SunFrog may fulfill any orders placed prior to termination and SunFrog may continue to use a previously active Design in marketing and promotional materials if such materials were created prior to removal of the Design from the SunFrog site.
7.8 You agree that SunFrog shall not be liable to You or any third-party for any termination of Your access to the SunFrog site. Should You object to any terms and conditions of the Agreement or become dissatisfied with the SunFrog site in any way, Your only recourse is to immediately discontinue use of the SunFrog site and/or terminate Your account.
7.9 Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
8. CHANGES TO THIS AGREEMENT. SunFrog reserves the right to change, modify, add, or remove portions of this Agreement at any time and may add to, change, suspend, or discontinue any aspect of the art submission process or the SunFrog site at any time. You will not receive notification of the changes, whether material or otherwise, and it is your obligation to review the agreement periodically to determine if the terms and conditions have changed. By uploading any design after a change, you are specifically agreeing to be bound by the terms and conditions as modified. If you disagree with the change, you may cancel your account at any time.
9. SUPPORT. SunFrog will provide support for My Manager and the art submission process as indicated on the SunFrog site and in accordance with the terms and conditions set forth in this Agreement.
10. EMAIL CONTACT. SunFrog reserves the right to send email to You for the purposes of informing You of applicable changes or additions to Your ability to upload and sell Products bearing the Design or any SunFrog-related products and services.
11. REPRESENTATIONS & WARRANTIES.
11.1 YOU REPRESENT AND WARRANT THAT THE DESIGN IS AN ORIGINAL WORK CREATED AND WHOLLY OWNED BY You, OR THE DESIGN IS PROPERLY LICENSED FOR REPRODUCTION, DISPLAY, AND DISTRIBUTION, AND YOU ACKNOWLEDGE THAT NEITHER SunFrog NOR ANY OTHER PARTY INVOLVED WITH THE PRODUCTION OF ANY PRODUCT INCORPORATING THE DESIGN ASSUMES THAT RESPONSIBILITY, AND THAT SunFrog's PRODUCTION OF ANY PRODUCT DEPICTING THE DESIGN DOES NOT INDICATE THAT SunFrog APPROVES OF THE DESIGN, THAT THE DESIGN CONFORMS WITH ALL APPLICABLE LAWS, OR THAT YOU ARE ABSOLVED OF ANY LIABILITY OR HARM ARISING FROM THE USE OF THE DESIGN.
11.2 YOU REPRESENT AND WARRANT THAT THE DESIGN DOES NOT INFRINGE ON ANY RIGHTS OF THIRD PARTIES, INCLUDING COPYRIGHTS, TRADEMARKS, SERVICE MARKS, TRADE SECRETS, PATENTS, MORAL RIGHTS, RIGHTS OF PUBLICITY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND THAT THE DESIGN DOES NOT CONTAIN ANY SCANDALOUS, LIBELOUS, DEFAMATORY, OR OTHER UNLAWFUL MATTER.
11.3 YOU REPRESENT AND WARRANT THAT THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS, OR OTHER RIGHTS IN THE DESIGN OR ANY PARTS OF THE DESIGN.
11.4 YOU UNDERSTAND THAT SUNFROG WILL COOPERATE WITH LAW ENFORCEMENT IN THE EVENT OF AN INVESTIGATION RELATED TO YOUR ACCOUNT AND/OR ANY DESIGN YOU UPLOAD TO OUR SITE. FURTHERMORE, SUNFROG WILL COOPERATE WITH COPYRIGHT/TRADEMARK OWNERS, THEIR REPRESENTATIVES, ATTORNEYS, AGENTS OR ASSIGNS IF ANY DESIGN YOU HAVE UPLOADED IS ALLEGED TO HAVE INFRINGED UPON THEIR INTELLECTUAL PROPERTY RIGHTS. SUCH COOPERATION MAY INCLUDE, BUT IS NOT NECESSARILY LIMITED TO, PROVIDING YOUR NAME AND CONTACT INFORMATION, PLUS ANY SALES INFORMATION IN THE EVENT A LAWSUIT IS FILED AGAINST YOU FOR COPYRIGHT/TRADEMARK INFRINGEMENT. YOU SPECIFICALLY AGREE THAT SUNFROG MAY RELEASE ANY AND ALL INFORMATION REQUESTED BY LAW ENFORCEMENT OR COPYRIGHT/TRADEMARK OWNERS, THEIR REPRESENTATIVES, ATTORNEYS, AGENTS OR ASSIGNS AND HEREBY RELEASE SUNFROG FROM ANY AND ALL LIABILITY FOR THE RELEASE OF SUCH INFORMATION. FURTHERMORE, IN THE EVENT THAT COMPANY, ITS ATTORNEYS, AGENTS, REPRESENTATIVES OR ASSIGNS DETERMINES, IN ITS/THEIR SOLE DISCRETION, THAT A COPYRIGHT INFRINGEMENT IS INTENTIONAL, SUNFROG MAY WITHHOLD ANY AND ALL PAYMENTS DUE TO THE INFRINGING ARTIST (REGARDLESS OF WHETHER RELATED TO THE INFRINGING DESIGN OR OTHERWISE) WITH SAID PAYMENTS INSTEAD BEING FORWARDED TO AN AGGRIEVED COPYRIGHT OWNER. YOU SPECIFICALLY AUTHORIZE THIS COURSE OF ACTION, AND HEREBY RELEASE SUNFROG, ITS REPRESENTATIVES, ATTORNEYS, AGENTS, OR ASSIGNS FROM ANY AND ALL LIABILITY FOR FORWARDING PAYMENTS TO AGGRIEVED COPYRIGHT OWNERS UNDER THIS SECTION.
11.5 YOU HEREBY REPRESENT AND WARRANT TO SunFrog THAT THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY YOU AND CONSTITUTES YOUR LEGAL, VALID, AND BINDING OBLIGATION, ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS; AND THAT THE EXECUTION, DELIVERY, AND PERFORMANCE BY YOU OF THIS AGREEMENT IS WITHIN YOUR LEGAL CAPACITY AND POWER, HAS BEEN DULY AUTHORIZED BY ALL REQUISITE ACTION ON USER'S PART, REQUIRES THE APPROVAL OR CONSENT OF NO OTHER PERSONS, AND NEITHER VIOLATES NOR CONSTITUTES A DEFAULT UNDER THE (a) PROVISION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT, OR DECREE TO WHICH USER IS SUBJECT OR WHICH IS BINDING UPON YOU, OR (b) THE TERMS OF ANY OTHER AGREEMENTS, DOCUMENT, OR INSTRUMENT APPLICABLE TO USER OR BINDING UPON USER.
12. LIMITATION OF LIABILITY. SunFrog OR ITS SUPPLIERS OR RESELLERS OR VENDORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF THE USE OR INABILITY TO USE THE SunFrog SITE OR ANY INFORMATION PROVIDED ON THE SunFrog SITE OR ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF SunFrog OR A SunFrog AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE WEB SITE OR ANY HYPERLINKED WEB SITE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INDICENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, SunFrog's LIABILITY IS LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW. THIS PARAGRAPH WILL SURVIVE THE FAILURE OF ANY EXCLUSIVE OR LIMITED REMEDY.
13. INDEMNIFICATION. You agree that SunFrog has no responsibility or liability as to Your Design. You agree to indemnify, defend, and hold harmless SunFrog and SunFrog's members, managers, employees, and agents from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorney's fees) relating to a breach of Your obligations under this Agreement, arising in tort, such as libel or defamation; or because of the violations of any third party intellectual property rights of editorial content, artwork, design, or other materials.
14. GOVERNING LAW. This Agreement shall be deemed to be a contract made under the laws of the United States of America and the State of Michigan and for all purposes shall be interpreted in its entirety in accordance with these laws, without regard to conflicts of law principles. The courts of the State of Michigan shall have exclusive jurisdiction over any claims, motions, or disputes arising from or relating to this Agreement, including validity, enforceability, or existence thereof.
15. FORCE MAJEUR. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, war (or similar), governmental action, labor conditions, acts of God, or any other cause which is beyond the reasonable control of such party.
16. INDEPENDENT CONTRACTORS. The relationship between You and SunFrog shall be that of independent contractors. Neither party will be considered an agent, employee, joint venturer, or partner of the other.
17. SEVERABILITY. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court o competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
18. HEADINGS. The headings for each section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. ELECTRONIC SIGNATURE. You agree to be bound by any electronic affirmation, assent or agreements transmitted through SunFrog site. You represent and warrant that You have the authority to agree to this Agreement. You agree that any decision or action to click on an "I agree," "I consent," or other similarly worded "button" or entry field using a mouse, keystroke, or other computer device constitutes such legally binding and enforceable affirmation, assent, or agreement and is the legal equivalent of Your handwritten signature.
20. INDEPENDENT EVALUATION. You acknowledge that You have read this Agreement and agree to all terms and conditions contained herein. You have had the opportunity to seek the advice of independent counsel prior to undertaking the obligations contained herein, You have independently evaluated the desirability of undertaking this Agreement, and You are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the You and SunFrog and supersedes any prior understanding or representation of any kind preceding the term of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement.